August 1, 2014

Immigrant detainees are routinely deported from New York State before all legal remedies have been exhausted, according to a report released this week by the New York University School of Law’s Immigrant Rights Clinic and immigrant rights advocacy organization Families for Freedom.

The report documents what the authors say is the frequent refusal by Immigration and Customs Enforcement to allow detainees facing deportation to challenge the convictions that triggered removal, as they’re entitled to do under New York law. The process is known as “post-conviction relief,” and it’s designed for situations where a defendant has been denied a fair trial for a variety of reasons.

Nancy Morawetz, a law professor at NYU who supervised the study, said ICE’s practices are thwarting an important safety valve within the criminal justice system.

“Post-conviction release doesn’t exist because the criminal courts always get it wrong,” Morawetz says. “But the criminal justice system is a very large, complex system where things move very fast,” and mistakes are sometimes made. That’s why it’s important, she says, that defendants are able to turn to the legal system when something goes awry. And that legal system can’t protect defendants if it’s not allowed to run its course.

The report points to the deportation of Javian Lawrence, a 28-year-old legal resident originally from Jamaica, who was targeted for removal as the result of a misdemeanor conviction in 2003. Lawrence, who was 17 at the time of his conviction, pleaded guilty to charges that he’d had sexual contact with his girlfriend, who was under the age of consent.

Lawrence’s attorney never told him that the plea — for a sexual misconduct charge — could result in his deportation. Although it’s classified as a misdemeanor, under a counterintuitive 1996 federal law that vastly expanded the definition of deportable offenses, the charge is considered an “aggravated felony” for the purposes of immigration proceedings.

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Lawrence argued that inadequate legal counsel had denied him the right to a fair trial, so he applied to have the conviction vacated under New York’s provisions for post-conviction relief. He was being held in an immigration detention facility when his conviction came up for review in 2012.

Had he been successful in his challenge, the basis for deportation would have evaporated. But according to the report, rather than letting the legal wrangling run its course, ICE simply refused to release him for his court appearance. And before Lawrence’s court date could be rescheduled, the agency went ahead with his removal and sent him back to Jamaica, where he is today.

The report also points to what it says are problems with how New York authorities honor “detainer” requests from ICE. A detainer is a formal request from ICE to hold an individual while their immigration status is investigated.

Once a defendant is released from local custody and handed over to ICE, deportation proceedings are set in motion. An for defendants seeking post-conviction relief, ICE detainers, the report says, can create a perverse incentive to stay in jail, even when they’re innocent.

One subject profiled in the report chose not to pay his bail on a minor assault charge because being released from custody at Riker’s Island would have automatically landed him in ICE detention, and likely led to his deportation. He was ultimately able to successfully challenge the conviction that made him deportable — a nonviolent forged instrument charge — due to the same kind of inadequate representation that Lawrence alleged, but not before needlessly spending months in jail.

Abraham Paulos, the director of Families for Freedom, said ICE is trying to have it both ways. The agency relies on the New York court system to identify individuals who qualify for deportation. But when the court system is poised to rescind the conviction that was the basis for deportation to begin with, they’re suddenly unwilling to embrace the court’s conclusions.

“They trust the (court) system enough to say ‘we’re going to arrest and banish you,’ based on a conviction, but not when the court’s decision might result in release,” Paulos says. “It’s like accepting a marriage but not the divorce.”

After years of increasingly close cooperation with federal immigration authorities, on “detainers and related issues, there has been something of a pushback against such cooperation in recent years. The New York City Council has taken steps to sharply limit the categories of defendants that they will hold for immigration authorities. Only detainer requests for violent criminals and certain sex offenders are supposed to be honored. But the report suggests those new standards aren’t always adhered to.

There has been resistance to other forms of cooperation as well. The controversial Secure Communities program uses a nationwide network to cross-reference every arrestee booked into a local jail against federal immigration databases, effectively recruiting local police as surrogates of ICE. Some local and state authorities objected to a program they say strained relationships between local cops and immigrant communities, and often led to low-priority offenders ending up in ICE custody.

Deportations have spiked dramatically under the Obama Administration. According to ICE statistics, the agency carried out 368,644 removals in 2013. While the Obama administration has pledged to limit deportation actions only to “criminal aliens,” a broad expansion of the types of crimes that can lead to deportation — the result of a law passed in 1996 under the Clinton Administration — mean that relatively minor crimes can trigger removal proceedings. Depending on the state, even simple drug possession can trigger a removal.

Vincent Picard, ICE’s spokesperson for the Eastern Seaboard, told the Voice the agency is reviewing the report and “expects to issue a statement soon.” We’ll update this post with their response.

Update, 9:49 p.m.: ICE released this statement on Friday afternoon:

“U.S. Immigration and Customs Enforcement (ICE) fully respects the right of all people to due process under the law. ICE routinely facilitates detainee appearances at federal and state court proceedings, including Article 440 relief hearings, when the agency is provided a writ for the detainee’s appearance by the appropriate jurisdiction. The New York Field Office is unaware of any such requests having been denied.”